Saturday, June 07, 2003

"What it takes to win a sleazy campaign"

The Virginia Gazette in Williamsburg has this detailed analysis of the strategies of the two enemy camps during the final days of the Jost-Norment campaign, before the Republican primary election for Norment's Senate seat, to be held on Tuesday.

Oral argument in the Wise County landfill case has this report on the oral argument before the Virginia Supreme Court on Friday in the Wise County landfill case, in which Julia McAfee argued for the local businesses and county attorney Karen Mullins argued in support of the ordinance.

More on Virginia Supreme Court's ruling upholding the death sentence in the Green case

The AP has this report on the Virginia Supreme Court's decision on Friday to uphold the death sentence of Kevin Green, in what was his second trial in Brunswick County for the murder of a convenience store owner.

Griese signs with Miami Dolphins, flashback results

I've never memorized Shakespeare, unlike Tim Sandefur, but I can recall something really useful - the names of almost everyone on both sides of the ball for the two Miami Dolphins Super Bowl winners, and so the signing of Brian Griese by the Dolphins makes me think that all they need now is to sign other people named Csonka, Kiick, Morris, Warfield, Twilley, Fleming, Mandich, Moore, Little, Kuechenberg, Langer, and Evans for their offense, and Fernandez, Stanfill, Den Herder, Kolen, Buoniconti, Swift, Matheson, Scott, Anderson, Foley, and Johnson, for the defense, like they had in 1973 and 1974, when I (living in Southwest Virginia, well outside the sphere of any pro sports town) thought they were the greatest (and they still get to drink champagne when the last undefeated team goes down, like on the night of the best Monday Night football game ever).

More on the Virginia Supreme Court decision in the Atkins death penalty case

Reporting on the Virginia Supreme Court's decision to send the mental retardation issue to the jury in the Atkins case are these articles from the Washington Post, the AP's Bill Baskerville, and the Richmond Times-Dispatch.

More on the lawsuit of Virginia Tech, et al., to save the Big East

Here are items about the lawsuit brought by Virginia Tech and others to save Big East football, from Jack Bogaczyk in WV, the Daily Press, the New London Day, the Middletown Press, the Roanoke Times, the Miami Herald, a High Point, NC sportswriter, the Charleston, WV Gazette, the AP, the Pittsburgh Post-Gazette, and the New York Times.

Another Virginia state school gives up on "morning-after" pill

The AP reports here that "George Mason University has become the second Virginia college to stop dispensing an emergency contraceptive to students after receiving criticism from a conservative state legislator."

Yesterday's Virginia Supreme Court opinions (read at last)

In Atkins v. Commonwealth, following the Supreme Court's opinion in Atkins v. Virginia, 536 U.S. 304 (2002), the Virginia Supreme Court in an opinion by Justice Kinser determined that a new trial was necessary to determine whether Atkins was mentally retarded, and remanded the case to the circuit court in York County "for a hearing on the sole issue of whether
Atkins is mentally retarded as defined in" new Code sections 19.2-264.3:1.1(A) and 8.01-654.2, which were passed by the General Assembly this year in response to the Atkins case.

The new Code sections, contained in Acts 2003 c. 1031 (which includes the proviso that "an emergency exists and this act is in force from its passage"), contain the following provisions:

§ 8.01-654.2. Presentation of claim of mental retardation by person sentenced to death before the effective date of this section.

Notwithstanding any other provision of law, any person under sentence of death whose sentence became final in the circuit court before the effective date of this section, and who desires to have a claim of his mental retardation presented to the Supreme Court, shall do so by one of the following methods: (i) if the person has not commenced a direct appeal, he shall present his claim of mental retardation by assignment of error and in his brief in that appeal, or if his direct appeal is pending in the Supreme Court, he shall file a supplemental assignment of error and brief containing his claim of mental retardation, or (ii) if the person has not filed a petition for a writ of habeas corpus under subsection C of § 8.01-654, he shall present his claim of mental retardation in a petition for a writ of habeas corpus under such subsection, or if such a petition is pending in the Supreme Court, he shall file an amended petition containing his claim of mental retardation. A person proceeding under this section shall allege the factual basis for his claim of mental retardation. The Supreme Court shall consider a claim raised under this section and if it determines that the claim is not frivolous, it shall remand the claim to the circuit court for a determination of mental retardation; otherwise the Supreme Court shall dismiss the petition. The provisions of §§ 19.2-264.3:1.1 and 19.2-264.3:1.2 shall govern a determination of mental retardation made pursuant to this section. If the claim is before the Supreme Court on direct appeal and is remanded to the circuit court and the case wherein the sentence of death was imposed was tried by a jury, the circuit court shall empanel a new jury for the sole purpose of making a determination of mental retardation.

If the person has completed both a direct appeal and a habeas corpus proceeding under subsection C of § 8.01-654, he shall not be entitled to file any further habeas petitions in the Supreme Court and his sole remedy shall lie in federal court.

§ 19.2-264.3:1.1. Capital cases; determination of mental retardation.

A. As used in this section and § 19.2-264.3:1.2, the following definition applies:

"Mentally retarded" means a disability, originating before the age of 18 years, characterized concurrently by (i) significantly subaverage intellectual functioning as demonstrated by performance on a standardized measure of intellectual functioning administered in conformity with accepted professional practice, that is at least two standard deviations below the mean and (ii) significant limitations in adaptive behavior as expressed in all of the following: conceptual adaptive skills, social adaptive skills and practical adaptive skills.

B. Assessments of mental retardation under this section and § 19.2-264.3:1.2 shall conform to the following requirements:

1. Assessment of intellectual functioning shall include administration of at least one standardized measure generally accepted by the field of psychological testing and appropriate for administration to the particular defendant being assessed, taking into account cultural, linguistic, sensory, motor, behavioral and other individual factors. Testing of intellectual functioning shall be carried out in conformity with accepted professional practice, and whenever indicated, the assessment shall include information from multiple sources. The Commissioner of Mental Health, Mental Retardation and Substance Abuse Services shall maintain an exclusive list of standardized measures of intellectual functioning generally accepted by the field of psychological testing.

2. Assessment of adaptive behavior shall be based on multiple sources of information, including clinical interview, psychological testing and educational, correctional and vocational records. The assessment shall include at least one standardized measure generally accepted by the field of psychological testing for assessing adaptive behavior and appropriate for administration to the particular defendant being assessed, unless not feasible. In reaching a clinical judgment regarding whether the defendant exhibits significant limitations in adaptive behavior, the examiner shall give performance on standardized measures whatever weight is clinically appropriate in light of the defendant's history and characteristics and the context of the assessment.

3. Assessment of developmental origin shall be based on multiple sources of information generally accepted by the field of psychological testing and appropriate for the particular defendant being assessed, including, whenever available, educational, social service, medical records, prior disability assessments, parental or caregiver reports, and other collateral data, recognizing that valid clinical assessment conducted during the defendant's childhood may not have conformed to current practice standards.

C. In any case in which the offense may be punishable by death and is tried before a jury, the issue of mental retardation, if raised by the defendant in accordance with the notice provisions of subsection E of § 19.2-264.3:1.2, shall be determined by the jury as part of the sentencing proceeding required by § 19.2-264.4.

In any case in which the offense may be punishable by death and is tried before a judge, the issue of mental retardation, if raised by the defendant in accordance with the notice provisions of subsection E of § 19.2-264.3:1.2, shall be determined by the judge as part of the sentencing proceeding required by § 19.2-264.4.

The defendant shall bear the burden of proving that he is mentally retarded by a preponderance of the evidence.

D. The verdict of the jury, if the issue of mental retardation is raised, shall be in writing, and, in addition to the forms specified in § 19.2-264.4, shall include one of the following forms:

(1) "We the jury, on the issue joined, having found the defendant guilty of (here set out the statutory language of the offense charged), and that the defendant has proven by a preponderance of the evidence that he is mentally retarded, fix his punishment at (i) imprisonment for life or (ii) imprisonment for life and a fine of $.........



(2) "We the jury, on the issue joined, having found the defendant guilty of (here set out the statutory language of the offense charged) find that the defendant has not proven by a preponderance of the evidence that he is mentally retarded.


So, the constitutionality of these new code sections will be tested right away, I suppose.

In Green v. Commonwealth, the Court in another opinion by Justice Kinser affirmed the death penalty imposed on the defendant, where mental retardation was one of the issued raised at trial. The Court in Green rejected appellant's issues regarding failure to appoint an investigator, alleged limitations on discovery, failure to change venue, failure to use defendant's juror questionnaire, and denial of a mistrial despite a witness's reference to the "previous trial" of the defendant.

In Tanner v. State Corporation Commission, the Court in that rarest of cases granted in part the SCC's motion for rehearing and changed part of its earlier opinion in a case involving what is covered by the Virginia Securities Act.

In C.F. Trust, Inc. v. First Flight Limited Partnership, the Court answered certified questions from the Fourth Circuit, and concluded that "that there is no logical basis upon which to distinguish between a traditional veil piercing action and an outsider reverse piercing action," while noting that "[i]n Virginia, unlike in some states, the standards for veil piercing are very stringent, and piercing is an extraordinary measure that is permitted only in the most egregious circumstances."

In City of Suffolk v. Board of Zoning Appeals, in a bit of an upset perhaps, the Court in an opinion by Justice Agee sided with the BZA and the landowner in a vested rights case under Va. Code 15.2-2307. Justice Keenan dissented, joined by Chief Justice Hassell and Justice Koontz. Reading the opinion, the dissent is more consistent with what I thought was the difficult task of proving vested rights, but this was the unusual case where the BZA and the circuit court sided with the landowner (as opposed to an appeal brought by the landowner have lost at every step along the way), and the majority's opinion might be seen as primarily the result of deference to the BZA and the Circuit Court, than a bold new step in the substantive law.

In Lackman v. Long & Foster Real Estate, Inc., the Court in an opinion by Justice Lacy rejected appellant's arguments to avoid an arbitation award in a dispute between real estate brokers over real estate sales commissions. The opinion is a strong endorsement of the enforceability of arbitration awards. (Arbitration always seems like a great idea until the arbitrators rule against you.)

In Harris v. Commonwealth, the Court in an opinion by Justice Lacy reversed the Court of Appeals, concluding that the defendant was illegally detained beyond a mere traffic stop and the evidence found in the resulting search should have been suppressed. Justice Kinser and former Chief Justice Carrico dissented.

In GEICO v. Moore, the Court in an opinion by Justice Agee reversed Judge Keith of Fairfax County on a coverage question about the terms of an umbrella liability insurance policy, with regard to the injuries of a husband sustained while riding as a passenger with his wife driving. The Court held that the umbrella policy as a general liability insurance policy is not subject to the "omnibus clause" in the auto insurance statutes, and the language of the policy exclusion was not unenforceably vague.

In Fowler v. Winchester Medical Center, the Court in an opinion by Justice Lemons held that a wrongful death suit brought by a nonresident party who had no standing, not having qualified as a personal representative in Virginia or any other state, did not toll the statute of limitations, based on prior cases that held no standing, no tolling.

Which judge in Bristol was that?

Crim Law has this post titled "A judge in Bristol refused to raise a $102,500 bond," which made me wonder just what case that was. As it turns out, the story was about a case on the Tennessee side, and the judge was Judge Phyllis Miller. Sullivan County, Tennessee, is a bit larger jurisdiction that the Circuit Court of the City of Bristol, Virginia, where (hopefully) murder cases are more rare.

Bloggers as journalists?

Ernie the Attorney notes here that the hoopla over Denise Howell's blogging from D reflects a blurring of the line between journalism and blogging, but notes significantly that "if you are going to rely on a blogger then how wrong can you go with Denise?" I agree with that completely - I don't know many reporters but I read the same bloggers (mostly blawgers) every day, at least the ones that are linked on my blog, and it is like getting e-mail from people I know - the familiarity adds to the understanding of the subject, as in I wonder why so-and-so thought this was interesting enough to put on his/her blog. On the subject of what is fair game for blogging, I would think that lawyers can blog whatever is not privileged, protected intellectual property, or subject to a court rules or a court order - a discussion at a public forum seems like fair game to me.

Denise Howell's comment on the article makes it sound like the reporter's attempt to contact her was derailed by her spam filter! Now, that's a story in itself.

The rest of the story from the Sixth Circuit

How Appealing has this post which explains that the rules were more ambiguous than was earlier reported in what I was reading when I wrote this.

And, by the way, How Appealing truly is the Inside Baseball of appellate law, best thing invented since Sportscenter, Booknotes, and The Golf Channel.

Friday, June 06, 2003

Today's Virginia Supreme Court opinions

The synopsis of today's Virginia Supreme Court opinions can be found here and the opinions themselves are here. (I'll read them myself this evening.)

Lee County sheriff's deputies go searching for missing goats, instead find marijuana

This story from the Kingsport Times-News raises the Fourth Amendment question of whether the search for the goats was a pretext for trying to find the marijuana, except that the sheriff's department is still looking for the goats.

Amended Virginia rule for corporate counsel in Virginia

The Virginia Supreme Court has this amended rule effective July 1, 2004, requiring all lawyers working in the Commonwealth as corporate counsel to either be licensed Virginia lawyers or to have obtained a "Corporate Counsel certificate" or to have registered with the Virginia State Bar as a "Corporate Counsel registrant."

If Gephardt is not rich, then tax cuts for people who make $150,000 are not tax cuts for the rich?

This article in the St. Louis paper (via Political Wire)has Congressman Richard Gephardt bragging on how he is not rich, so I guess anyone who makes as much as a congressional salary should not be considered "rich" when one is characterizing who benefits from tax cuts.

Old newspapermen faced gunshots but not consolidation

This interesting commentary places the FCC's rules on media ownership restrictions in context with reference to Virginia John Moncure Daniel, the subject of the book "Pen of Fire," and who "fought several duels and died in Richmond in March 1865 after being wounded in a duel with the treasurer of the Confederacy." The commentary concludes: "Good thing John Moncure Daniel wasn't around; I am sure he would have shown up and challenged FCC Chairman Michael Powell to a duel."

Virginia Tech and other 4 leftovers file suit in Connecticut to block ACC expansion

The AP has this report on the lawsuit filed by Virginia Tech, Pittsburgh, Connecticut, West Virginia, and Rutgers in state court in Connecticut, seeking to prevent the departure of Miami and Boston College from the Big East to the Atlantic Coast Conference. Miami and Boston College were sued mostly because of their promises to stay in the Big East. Evidently, the plaintiffs could not find similar promises made by Syracuse.

The Virginia Highlands Festival, or why there are no jury trials in Abingdon in the first two weeks of August

In federal court in Abingdon, Virginia, it is always possible to have a trial rescheduled away from the first two weeks of August, when 100,00+ visitors invade the town. Today's Washington Post has this today on the Virginia Highlands festival held in Abingdon each year, occupying Main Street outside the federal courthouse and most of the town:

"For two weeks every summer, the Virginia Highlands Festival takes over Abingdon, a 225-year-old community graced by brick sidewalks, grand old shade trees and a 20-block historic district larded with Federal and Victorian architecture. The celebration of the region's cultures and customs weaves together threads of music, dance, local history, the great outdoors and more. Highlights include street parties and Celtic, gospel, classical, bluegrass and country concerts, held almost around the clock. There are also workshops in poetry, creative writing classes (taught by Appalachian author Lee Smith) and classes in fiber arts, weaving, needlework and instrument making. The festival also has a sprawling antiques market and more than 100 arts and crafts vendors. Outdoor activities include nature hikes, caving trips and bike rides. Other entertainment includes children's workshops and plays; living history portrayals; house tours; the third annual Appalachian Festival of Plays and Playwrights; three more plays at the historic Barter Theatre; and lectures and slide shows on subjects ranging from "Growing Ginseng" to "Native American Symbols and Colors."

. . . Much of the festival happens on Abingdon's Main Street, where visitors will find vendors' tents filling the yards of the homes and buildings along the road, interspersed with a handful of antiques shops, art galleries and boutiques.

More vendors can be found on Barter Green, next to the Martha Washington Inn, a stately and elegant brick structure that dominates the center of town. The arts and crafts range from utilitarian -- pottery, spoons, clothing, furniture -- to fine art. Many artists are working on their crafts as visitors browse through the works on sale.

One of the artists from last year, Maurice Cook of Birmingham, was painting acrylic pictures of family gatherings -- reunions, birthdays, holiday get-togethers. The pictures were filled with joy and movement, but his black figures were faceless, which was explained in a statement in the tent: "I want all people to be able to relate to my paintings; that is the reason there are no faces. I try to tell a story using body language."

A huge tent on the side of the green is home to the daily lineup of concerts, storytellers, poetry readings and other performances. Abingdon is only 18 miles from Bristol, a city that straddles the Virginia-Tennessee line and is better known as the "Birthplace of Country Music." (See accompanying box on the Smithsonian Folklife Festival, which showcases the Bristol Sessions and Appalachian music this year.) This proximity to Bristol has influenced the numerous free concerts presented at the festival. The form can be open; one night the emcee invited anyone who wanted to perform to just sign up. A Native American singer who was "just passing through town and heard the music" retrieved his guitar from his car and played a few songs and told a few stories.

Scheduled performers this year will include Boys of the Lough (Celtic); Ralph Blizard & the New Southern Ramblers, the Solomon Branch Band and James Leva & Memory Theatre (bluegrass); Doyle Lawson & Quicksilver from Bristol and the Rochesters from South Carolina (bluegrass gospel); the McAllister Family, also known as "Heaven's Gems" (gospel); Buck Ram's Platters (classic rock); Sammy Blue, Blue Rapture and WIYO's, South African percussionist Mogauwane Mahloele; (African drumming); Spectral Voices (harmonic singing); Michael Reno Harrell (Appalachian); and Jimmy Fleenor & Friends (swing). Dance troupes include Jump Rhythm Jazz Project from Chicago, Latin Ballet of Virginia and the Highlands Ballet.

Another popular event is the annual block party, which takes place right on Main Street. This year's party theme is "Dancin' in the Streets." It runs from 6 to 10 July 26. Buck Ram's Platters will perform, with dancing and other entertainment.

Porterfield's 70-year-old Barter Theatre also has a role in the festival. The 500-seat theater will present three plays during the festival: "One Flew Over the Cuckoo's Nest," "1776" and "Pirates & Pinafores: A Musical Tribute to Gilbert & Sullivan." The Barter also produces the Appalachian Festival of Plays and Playwrights, which is held in Barter II, a 150-seat theater in a brick building across the street next to Barter Green. This festival's plays are Ron Coleman's "The Hanging of John Harden," based on a real event, and Ron Osborne's "First Baptist of Ivory Gap," a story of love and faith.

(The theater got its name from Porterfield's creative ticket-selling policy when he started the theater in 1933 during the Depression. Porterfield offered tickets for 40 cents or an equivalent amount of farm produce. The "ham for 'Hamlet' " policy caught on and the theater survived -- adapting the policy of bartering as its name. Legend says Thornton Wilder accepted a ham as payment for royalties and George Bernard Shaw, a vegetarian, got his royalties paid in spinach. Such stars as Gregory Peck, Ernest Borgnine, Patricia Neal, Hume Cronyn and Kevin Spacey also acted on its stage early in their careers. Its success led Virginia to declare it the state's official theater in 1946).

Art, music and drama are great fun, but there is one more attraction at this festival: the mountains and forests around Abingdon. The Virginia Creeper Trail, a 33.4-mile shared-use trail connecting Abingdon with the Virginia-North Carolina border east of Whitetop Station, Va., starts in town and is great for biking and hiking. Daytime and moonlight bike rides on the trail are offered during the festival. Other nature activities scheduled during the festival include beginning and intermediate caving trips, a high-forest hike, birding trips and wine-tasting tours.

It's just too much to do in a single weekend."

Thursday, June 05, 2003

Sixth Circuit chief judge found to have acted improperly?

Via How Appealing, this story in the Washington Post relates that an internal review in the Sixth Circuit has concluded that the chief judge "named himself to a three-judge panel that was to hear the case even though court rules specify that assignments are made at random," and then "delayed for five months a request to have the full appeals court hear the case, ensuring the exclusion of two conservative judges who were planning to retire," according to the review as cited by the Post. How Appealing also has this link to the Court's conclusions, posted on the Judicial Watch website.

Howard Bashman calls this a "most remarkable development," and has more background here. I never heard of anything like it, and it is disappointing. Maybe there's more to it somehow (apparently one of the events occurred during the day on September 11, 2001, which could not have helped anyone's thought processes). I wonder how anyone ever knew to make such a complaint in the first place - apparently Judical Watch figured it out (as detailed here) from the dissenting opinions and the records in the cases.

The case to which the judge allegedly appointed himself was one where the original panel included a visiting judge, and the second panel should have included the same judge, or a substitute chosen at random. I had a case that was appealed twice and, expecting that a second appeal would be before the same panel, my plan after the first appeal was to win summary judgment in district court on a record that would satisfy the two judges who voted against my side in the first appeal. (No rocket science, there.) Before the second appeal, one of them died, Judge Murnaghan. I told the court in the second oral argument what I had done, the efforts I had made to satisfy Judge Murnaghan's opinion from the first appeal, and that even though he wasn't there, I thought I had the answers to his points. When the judges came down to shake hands after the argument, one of them pointed out the portrait of Judge Murnaghan in the courtroom. It never occurred to me before reading all this that maybe someone picked the third judge other than randomly, and it does not occur to me now.

The internal workings of a court to me are like jury deliberations - I don't want to know or believe anything but that the parties are treated fairly and cases decided straight up. If the rules say the judges are assigned at random, I believe that's what happens. Somewhat similarly, I am hopeful that jurors actually follow their instructions. But, sometimes my naivete takes a bruising. One former juror called me at the office following one of the first cases I tried and after he told me all the things the jury did to reach their decision I wished he hadn't. My next thought was what had I done, was it ethical to talk to a juror, even days after the trial was over - I thought to myself, "wasn't that how they got Clarence Darrow?" I started calling around frantically until finally someone who knew pointed me to the right provision in the ethics rules and reassured me that, by any measure, I was no Clarence Darrow.

The end of the story is that the other side was not happy with the verdict, and filed a motion for retrial, so the case went back before Judge Turk of the W.D. Va for a hearing on the motion. The first words out of his mouth at the hearing were something like this: "Fellows, it's good to see you, now tell me, what have you heard about what the jury was thinking when they decided this case?"

Fourth Circuit reverses dismissal for lack of sufficient amount in controversy in diversity case involving Virginia construction law dispute

In Dennis Stubbs Plumbing, Inc. v. Travelers Cas. & Surety Co., the Fourth Circuit in a per curiam opinion for the panel of Judges Luttig and Michael and District Judge Goodwin reversed the district court's dismissal of a construction contract claim, where the district court had concluded that most of the plaintiff's alleged damages were barred by the "no damages for delay" clause in the contract, and therefore the amount in controversy was below $75,000. So, now, they are back in federal court, which makes me wonder why did the defendant litigate the case this way rather than trying to get summary judgment, but maybe it was the district court's sua sponte idea that the issue was jurisdictional. I've had something like this come up where the plaintiff has a piddling damages claim attached to a punitive damages for the statutory limit that puts the case over the jurisdictional amount, and wondered whether to attack federal jurisdiction but never decided to it.

Another trademark and ACPA ruling from the Fourth Circuit - this one, ""

In Sloan v. Auditron Electric Corporation, the Fourth Circuit in a per curiam opinion for the panel including Judges King and Traxler and Senior Judge Hamilton upheld summary judgment for the defendant, where the trial court had held that the plaintiff had admitted in his own deposition testimony that he had discontinued use of "Auditron" for a period of at least three years, and he could not avoid the consequences of this testimony by means of a post-deposition affidavit, and on the cybersquatting claim, there was no bad faith shown on the part of the defendant, even though the defendant knew of the plaintiff's use of "Auditron."

No Speedy Trial Act violation for defendant indicted in 2001

In U.S. v. Ketron, Judge Jones denied the defendant's motions for dismissal for violation of his statutory and constitutional rights to a speedy trial, where the defendant was indicted in 2001 but did not appear before a judicial officer in the W.D. Va. until 2003, having been in prison elsewhere in the interim. The defendant was represented by Nancy Dickenson of Lebanon.

Impact fees in Virginia? Stafford County imposes fees including $1,600 per single-family home

This report in the Richmond Times-Dispatch said that one Virginia county has adopted on a trial basis impact fees for new development.

This makes economic sense for the county, and seems a bit more honest than the charade of "voluntary" proffers which are common in Virginia (as reported here), but I wonder about the nature and extent of the locality's authority to impose such fees, and I wrote a paper in law school concluding that the takings clause required heightened scrutiny of the nexus between the "impact" and the "fee," based on my understanding (to the extent I understood anything) of the Supreme Court's analysis in the Nollan case, among others. In other words, even though an impact fee might be presumptively valid under Virginia law, since an impact fee affects property rights there will be angry people ready to make the government justify its actions.

The current impact fee law in Virginia applies only to "(i) any county having a population of 500,000 or more as determined by the most recent U.S. Census, (ii) any county or city adjacent thereto, (iii) any city contiguous to such adjacent county or city, (iv) any town within such county or an adjacent county, and (v) any county having a population between 58,000 and 62,000," which excludes all or most SW VA counties. Va. Code § 15.2-2317. An "impact fee" is defined as "a charge or assessment imposed against new development in order to generate revenue to fund or recover the costs of reasonable road improvements necessitated by and attributable to the new development. Impact fees may not be assessed and imposed for road repair, operation and maintenance, nor to expand existing roads to meet demand which existed prior to the new development." Va. Code § 15.2-2318. The authorities who are allowed to impose impact fees "may, by ordinance pursuant to the procedures and requirements of this article, assess and impose impact fees on new development to pay all or a part of the cost of reasonable road improvements attributable in substantial part to the new development." Va. Code § 15.2-2319.

"I would have done what Lorena Bobbit[t] did"

The Bluefield newspaper has this article on what women from the Bluefield, VA/WV area would have done if they were in the position of Hillary Clinton when she found out about Monica Lewinsky.

Roanoke lawyer says litigation may be one answer for ACC-Big East dispute

Roanoke lawyer Walter Peake has this commentary on the expansion of the Atlantic Coast Conference and the demise of the Big East, which leaves his alma mater Virginia Tech out in the cold, and concludes that "[d]epending upon how the facts shake out, Virginia Tech and the remaining Big East schools may have a legitimate basis for a lawsuit under several different theories, including antitrust law and other business torts."

Peake is not the only one talking about antitrust theories, as evidenced by articles here in the Hartford Courant, and here in Florida Today. This article notes that the money started flowing to the conferences rather than to the NCAA directly after the Supreme Court ruled in 1984 that the NCAA was subject to antitrust liability.

The problem with the antitrust case of those left in the Big East is not that they want a level playing field for all schools, but that they want back in the cartel that is hoarding all the money. I don't know whether this is a legal problem, but in line with the old maxim watch what you ask for, complaints about the ACC expansion could lead to legislative reforms that will force Virginia Tech and all the other bigtime football programs to share the wealth in ways they don't now.

Governor Warner appoints outside counsel for investigator sued for malicious prosecution

As reported here in the Bristol paper, since former Wise County Commonwealth's Attorney Joey Carrico has moved to the Attorney General's office, that office has withdrawn from representation of the defendant in a civil case which may involve Carrico's testimony, and Governor Warner has appointed SW VA attorneys Gerald Gray and Roy Jessee to represent the defendant, an investigator accused of malicious prosecution in connection with his investigation of an excessive force case at the Wallens Ridge prison in Wise County.

Local congressmen tell tobacco farmers not to worry about Surgeon General's remarks

As reported here in the Washington Post, the Surgeon General told a subcommittee of the House Energy and Commerce Committee earlier this week that he supports the abolition of all tobacco products. While this may be a principled stance for a man of medicine, the men of politics are point out this was not their view. In today's Bristol paper, Congressmen Rick Boucher from the SW VA and Bill Jenkins from the NE TN both reassured tobacco farmers that no such ban was in the works, in this article titled "Suggestion that tobacco should be illegal sends shock waves through Mountain Empire." Senator Allen and others took the same view, as reported here.

Wednesday, June 04, 2003

Applauding the Fourth Circuit for its ruling in the case

iBusinessLaw has this post on the Fourth Circuit's ruling in the case, saying the Court got it right.

Malingering on IQ test is "very possible" says expert, commenting on Percy Walton death penalty case

The case of the Virginia inmate whose execution was stayed by Judge Wilson of the W.D. Va. raises questions about how and whether mental retardation can be determined, particular in Walton's case, as he has been tested and retested and some of his own tests show that he is not mentally retarded, as stated in this AP report.

Seller gets less time than users and Judge Turk frets over guidelines

As reported here in the Roanoke Times, Judge Turk of the W.D. Va. expressed consternation over the outcome whereby a seller of heroin received less time under the federal sentencing guidelines than did some of the users who bought the drug.

Judge Turk is no fan of the sentencing guidelines, nor is any federal judge I've ever heard on the subject.

"[T]he 4th Circuit suggested Tuesday that it may not be the pushover the Justice Department is counting on it to be"

That was the conclusion of CBS analyst Andrew Cohen writing here about oral argument before the Fourth Circuit on Tuesday in the Moussaoui case.

Can't it wait until a couple of weeks? Tech asks AG Kilgore for review of programs on use of race

It was my understanding that the Supreme Court will rule in the University of Michigan cases before the end of this session, but in spite of (or maybe because of) this upcoming event, Virginia Tech is once again soliciting the advice of Office of the Attorney General Jerry Kilgore regarding the use of race in a number of its programs, as reported here. One of the criticisms of the BOV's decisions on race in admissions earlier this year was that they could wait for the Court, which makes even more sense now than it did then.

This other story reports that Tech did not meet its goal for out-of-state students for the coming year.

Special session of General Assembly unlikely in Virginia

Notwithstanding Governor Warner's earlier talk of a special session, it appears that there will not be a special session in the fall of the General Assembly in October because revenues have not fallen below projections, as stated in this article, which quotes Delegate Terry Kilgore on how "conservative" were the numbers used by the legislators.

TN county attorney disqualified from cases investigated by law enforcement officers employed by the county

A Tennesee judge has held as reported here that the county's attorney cannot represent criminal defendants in cases that were investigated by the employees of the county, including employees of the sheriff's department, because "the county attorney has a conflict of interest in these cases where the sheriff's deputies are the actual prosecutors and are material witnesses against criminal defendants."

Cell phone tax hike in Danville

Providing further grist for the mill of the telecommunications tax reformers, the City of Danville is raising is taxes on cell phones AND the 911 tax, as reported here.

The telecommunications companies and some legislators are claiming that Virginia's localities charge more such taxes than in other states and the different tax rules in each jurisdiction may compliance a costly matter in Virginia. (Part of the response of the localities is that the local taxes are higher because of the budget shenanigans and unfunded mandates from the General Assembly.)

Woman gets death penalty in Virginia case

The Richmond Times reports here that a woman has been given a death sentence for the murder of her husband and step-son, and "[i]f put to death, [she]would be the first woman executed in Virginia since Aug. 16, 1912, when 17-year-old Virginia Christian was electrocuted."

Senator Newman's proposal for reforming Virginia's medical malpractice cap

From the Lynchburg paper, via Virginia Lawyers Weekly, here is a description of a proposal from Senator Newman to replace the $1.6 million liability cap on medical malpractice damages in Virginia with a $250,000 cap on non-economic damages, on the model of California, with the idea that this would actually reduce awards against doctors because it would eliminate the incentive for lawyers in every case to seek the $1.6 million.

Another strange wage study says women get paid less in Southeast Virginia

I have never understood this kind of study, which seems to conclude that women are doing different jobs than men, rather than that women are paid at different rates for the same job, despite what the headlines always suggest. Doesn't that mean it's a job gap, not a "pay gap"?

Tuesday, June 03, 2003

Bringing public fiber and public water to SW VA homes at the same time

eWeek has this report on the LENOWISCO project in far SW VA to use new public water lines in conjuction with laying fiber optic lines for telecommunications.

Hearing officer requires mining permit challenger and his lawyer to pay small amount of fees and costs

A hearing officer has determined that a property owner and his lawyer should pay a small amount of attorneys' fees and costs for their challenge to mine permits in Wise County, as reported here.

Dismissal of defamation claim against Wen Ho Lee and others upheld

In Trulock v. Lee, the Fourth Circuit in a per curiam opinion for the panel of Judges Michael, Traxler, and King upheld the dismissal of the defamation claim brought by a former Department of Energy official (represented by Larry Klayman of Judicial Watch) against for Los Alamos scientist Wen Ho Lee for allegedly publishing a statement that the investigation of Lee was racially motivated.

In the trial court, the United States sought protective orders as a non-party and eventually intervened in the case, and on the government's motion to dismiss the trial court concluded that the case had to be dismissed because so much of the evidence needed was covered by the state secrets privilege. The kinds of information that was covered by the protective order included:

1. Intelligence sources and methods;
2. The CIA "walk-in" document;
3. CIA and other U.S. intelligence analyses regarding the capabilities and developmental status of the Chinese nuclear weapons program;
4. Information that would identify or reveal CIA Employees, Covert Installations, Operational Tradecraft, and Clandestine Sources and subsources. . . .
[5.] Restricted Data [under the Atomic Energy Act, 42 U.S.C. § 2011 et seq.] bearing on why and how the DOE AI was conducted including (a) information indicating if a compromise occurred and (b) information on exactly what compromise may have occurred.

The Fourth Circuit's opinion cites the following as the standard for the state secrets privilege: "Under the common law state secrets privilege, the government may prevent disclosure of information in a lawsuit if the court is satisfied 'from all the circumstances of the case, that there is a reasonable danger that compulsion of the evidence will expose military matters which, in the interest of national security, should not be divulged.'" The Fourth Circuit affirmed the trial court's ruling even though the trial court never actually looked at any of the privileged documents, but instead relied on an affidavit from the Director of the CIA, George Tenet.

Former school superintendent gets past motion for summary judgment in malicious prosecution case against building inspector

In Proffit v. Ring, Judge Jones of the W.D. Va. denied defendant's motion for summary judgment on plaintiff's malicious prosecution claim, in the case of the former superintendent of schools in Grayson County against the county building inspector who caused a criminal warrant to be issued against the superintendent for school construction that was without a permit.

The Court concluded: (1) on the issue of advice of counsel, "genuine issues of material fact exist as to whether attorney Bolt was supplied with all of the relevant facts and whether Ring followed his advice," (2) on the issue of voluntary compromise, there was another issue of fact as to "whether there was an agreed settlement of the criminal charge against Proffit," and (3) issues of fact precluded a finding that the defendant was entitled to immunity.

Bruce Smith resigns from Virginia Tech Board of Visitors

As reported here, Bruce Smith lately of the Washington Redskins is giving up his position on the Board of Visitors of Virginia Tech, having attended only one meeting, at which the vote was taken to reverse the school's policy removing race as a factor in admissions.

DirecTV adds local service in Roanoke

Catching and passing the competition, DirecTV accelerated its implementation of local broadcast service in the Roanoke area, as reported here.

Virginia lawyer suspended for a year for setting fires

A Virginia lawyer upset over a construction behind his property set a series of brush fires, which led to his conviction for two misdemeanors and the loss of his law license for a year, according to this report in the Roanoke Times.

"Say Appal-ach-a, and give this native something to cheer"

Amy Clark has this column a while back in the Sunday paper about the correct pronounciation of "Appalachia."

Judge Williams gave a speech once which included a story on the same theme about his friend Henry Kegley from Bristol, who was watching the Today Show one morning and heard Willard Scott say apple-LAY-cha. So, the story goes, Kegley called Willard in New York City and told him this: "If I threw you an apple, I'd say 'apple-at-cha.' Remember it that way." Some time later, Kegley heard that Willard Scott was coming to the Tri-Cities, so he went to see him at the airport. Approaching Mr. Scott, Kegley tossed him an apple. Willard caught it and said, "you must be Henry Kegley from Bristol."

Who wouldn't want a Wal-Mart in their neighborhood?

The Town of Abingdon is imposing new rules for big box buildings, as reported here, while Bristol, Tennessee, braces for months of traffic snarl resulting from the new Wal-Mart construction on the Volunteer Parkway, as reported here in the same day's paper.

Monday, June 02, 2003

Bill Hobbs gets $1 per year for his birthday

Bill Hobbs of HobbsOnline says here that he gets a check from his mother in the amount of his age times $1 each year for his birthday. He figures he's losing the battle with time but beating inflation.

That story reminds that my grandmother, who died on August 12, 2002, at the age of 86, would send me each year for my birthday, even after I was a practicing lawyer, a birthday card (sometimes a few days late) with a handwritten note saying how well she remembered getting the long-distance call from Kentucky when I was born and how proud she was that I was her grandson, and inside the card was a one dollar bill. (Unlike Bill Hobbs, I got no cost-of-living adjustment from her, but her list of people to whom she sent cards grew larger as I grew older.)

Rush Limbaugh picks up on the Coburg Dairy case, ponders the fate of the "General Lee"

The Fourth Circuit decision regarding the on-the-job display of Confederate flag decals has reached the attention of Rush Limbaugh, as evidenced by this item titled "Guy Fired for Dixie Decal" on his website, which points out that the hot rod driven by the Dukes of Hazzard (the "General Lee") would be affected by this decision (if someone drove it to work).

Law readers in Virginia and elsewhere

This report in the Christian Science Monitor describes how it is still legal in Virginia and six other states to become a lawyer by "reading the law" and not going to law school.

The caveat is you still have to take the bar exam, which sometimes proves to be an insurmountable obstacle for some law readers. There are a number of lawyers in SW VA who did not go to law school, but not many of those are under the age of 30.

UPDATE - Via Tim Sandefur and So Cal Law Blog, the LA Times (registration required) has this story on some new lawyers who went to law school via the Internet (and then passed the bar exam).

Another state enacts "bomb shelter" protecting residents from UCITA

beSpacific has this report on another state that has adopted a law to protect its residents from the application of the Uniform Computer Information Transactions Act, noting that such laws have been passed in Iowa, West Virginia, North Carolina and now Vermont. Also on the Vermont law is this story from the Insurance Journal.

Virginia is one of what I thought were only two states (the other being Maryland) that have passed UCITA - it is here in the Virginia Code.

Update - I notice via Brian Peterson's Legal Weblog this interview published on with the Attorney General of New York Elliott Spitzer, which notes his vehement opposition to UCITA and some stock provisions in end-user license agreements.

Mountaintop mining report

The Indiana lawblog has this fine collection of stories and information about reactions to the new federal study on mountaintop mining.

I was unaware that this was a topic of interest in Indiana, but it certainly is a hot topic in WV and SW VA.

Petitioners' brief in the Chapter 7 attorney fee case from W.D. Va. now pending before Supreme Court

Thomas Goldstein of scotusblog has posted here the brief he filed on behalf of his client and co-counsel John Lamie in the Chapter 7 attorneys' fee case originating in the W.D. Va. and now before the Supreme Court.

E.D. Tenn. dismisses wrongful discharge claim of atheist

As reported here, Judge Hull of the E.D. Tenn. has dismissed the employment law claims of a woman who alleged that she was terminated from her employment because she is an atheist. The Court held that disruption in the workplace justified the dismissal, even though the employer may have gotten wrong the facts about the disruption.

Fourth Circuit summarily affirms denial of attorneys' fees in U.S. Route 29 environmental case

In Piedmont Environmental Council v. U.S. Department of Transportation, the Fourth Circuit in a per curiam opinion for the panel of Judges Widener, Williams, and Traxler affirmed without much discussion the decision of Judge Norman Moon of the W.D. Va. to deny completely plaintiffs' claim for attorneys' fees of $493,404.75 under the Equal Access to Justice Act, concluding that the appellees' position was "substantially justified," where the plaintiffs had prevailed on but one count out of nine in their legal challenge to the proposed Route 29 bypass at Charlottesville and widening of Route 29.

Amendment to the complaint moots appeal claiming protection of the Eleventh Amendment

In Ohio River Valley Environmental Coalition, Inc. v. Timmermayer, the Fourth Circuit in a per curiam opinion for the panel of Judges Widener, Williams, and Motz dismissed as moot the appeal of a West Virginia state agency claiming immunity under the Eleventh Amendment, where the Court concluded that the trial court's order denying the defendant's motion to dismiss, because it also granted leave to amend the Complaint, also mooted any issue about whether the claims in the prior version of the Complaint were covered by the Eleventh Amendment.

Cybersquatting judgment in favor of the City of Barcelona, Spain over "" reversed for failure to apply the Lanham Act

In, Inc. v. Excelentisimo Ayuntamiento de Barcelona, the Fourth Circuit in an opinion by Judge Niemeyer, joined by Judges Motz and Wilkinson, reversed the district court's judgment against the plaintiff who brought suit challenging a ruling under the Uniform Domain Name Dispute Resolution Policy ("UDRP") obtained by the defendant regarding the legality of plaintiff's registration and use of "" The Court concluded that the trial court erred when it applied Spanish law rather than the Lanham Act and when it based, in part, its order requiring plaintiff to transfer the domain name on a counterclaim that the City Council never filed. Applying the Lanham Act, the Court noted that the defendant "could not obtain a trademark interest in a purely descriptive geographical designation that refers only to the City of Barcelona."

Judge Wilson of W.D. Va. enters default judgment of $26,398 plus $7,795 attorneys' fees in Fair Debt Collection Practices Act case

In McHugh v. Check Investors, Inc., Judge Wilson of the W.D. Va. described his findings on damages and attorneys' fees on the plaintiff's claims for violation of the Fair Debt Collection Practices Act and for intentional infliction of emotional distress. The defendant defaulted in the case and never appeared in the case. The judge's award included the following: "for $1398 on McHugh’s FDCPA claim consisting of the following: (1) actual damages of $163; (2) statutory damages of $1000; and (3) costs and expenses of $235. The court also will award attorney’s fees in the amount of $7795 [at $200 per hour]. Judgment will be entered against Check Investors for $25,163 on McHugh’s intentional infliction of emotional distress claim consisting of the following: (1) actual damages (including emotional distress) of $10,163; and punitive damages of $15,000."

New York Times on rebel flag sticker case

The New York Times has this report on the Fourth Circuit's opinion from last week in Dixon v. Coburg Daily, regarding the "First Amendment" rights of the employee who displated a confederate flag symbol at work.

I still think this was a bad decision, the First Amendment issue which gets the headlines is not reached if the removal was wrong, and I think it was. The First Amendment issue came down against the employee's displaying the symbol of the Confederacy as protected speech in the workplace setting, which certainly seems like the right conclusion, but I can't get over applying the First Amendment to private employers.

One of the first cases I ever worked on had to with whether an employee who said to the head of the company, "you're full of _ _ it," had engaged in misconduct that would deprive him of entitlement to unemployment benefits after the company fired him. Of course, there are some protected speech rights in the workplace under the National Labor Relations Act, and I think the circuit court judge in the case suspected that the claimant's termination was the product of some kind of anti-union animus. I can imagine the claimant in that unemployment case also saying that it was a violation of his First Amendment rights, and the employer having to justify its actions.

Sunday, June 01, 2003

Unlawful discrimination on the "juries" in Colonial Williamsburg?

IsThatLegal asks here and here "is that legal" of his experience with the jury selection for the "trials" held in Colonial Williamsburg.

I lived in Williamsburg for the three years of law school and never saw this event, which happens I think every day. I like Colonial Williamsburg, but not so much for the historical interpreters as for the look of the place - it was like the neighborhood park, or part of the College campus, a good place for a walk or to sit in the sun and eat a Virginia ham and provolone on french bread sandwich from the Cheese Shop or a gyros from the College Delly. (I wasn't there in the heat of summer, and I never cooked much, either.)

As a different kind of discrimination story, I recall that one of my law school classmates worked one summer in one of the "shops" on Duke of Gloucester Street in Colonial Williamsburg and later told me that from male tourists she received (and rejected) many unruly invitations, most of which included the proviso that she would wear her colonial costume.

Three reasons from Senator John Edwards to not lift media ownership restrictions

In a letter to the chairman of the FCC, cited here on the Lessig blog, Senator John Edwards of North among other reasons to oppose the lifting on restrictions on media ownership the fact that in rural North Carolina (as in Southwest Virginia and Northeast Tennessee) local stations in recent years have "offered prime-time broadcasts of Atlantic Coast Conference basketball games, Billy Graham crusades, and muscular dystrophy telethons."

Now, though, at least at my house, sometimes the ACC games are on ESPN and the local station at the same time, and there seem to be Billy Graham reruns on another cable channel quite often. (I saw one the other day from Texas Stadium made about 1970, where one of the speakers was Tom Landry, the coach of the Dallas Cowboys.) I don't know about muscular dystrophy telethons, but there was one for the Children's Miracle Network on the local Media General station this weekend. (Is Media General not one of the media companies limited by the current rules?)

Whenever I think of Billy Graham, I recall the story from this book (I think it was) about the famous D.C. lawyer, Edward Bennett Williams, who called Graham as a character witness in some case, maybe it was the trial of John Connally. Williams asked Graham to tell the jury what he does for a living, and Graham said something like "bringing to the people of the world the Gospel of Jesus Christ," which in turn led one of the jurors to exclaim, "Amen!"

Direct sales of wine in Virginia and elsewhere

The UPI has this report on the new wine sales law in Virginia (effective July 1) and how it compares with those of other states.

The First Amendment rights of spammers

This commentary from the Raleigh newspaper considers (loosely) the history of commercial speech and the First Amendment in the context of spam.

Moussaoui's right to information from other prisoners to be argued this week in the Fourth Circuit

As reported here, the issue is this: "Does a terrorism defendant have the right to question other alleged terrorists who are being held captive and are undergoing sensitive interrogations overseas if it would aid his case?" A yes or no answer "either narrows terrorism defendants' rights or forces the government to scuttle the Moussaoui case."

More on the workplace confederate flag sticker case

The AP has this report on the Fourth Circuit's decision last week in Dixon v. Coburg Dairy to uphold an employer's right to discipline an employee for displaying confederate flag stickers at work.

Not seeing the forest for the trees, I wrote at length about the more obscure aspects of the case, in this post.

Stories from the Virginia Senate races

The Daily Press reports here that critics are saying Paul Jost is immature, here that Senator Norment's past is haunting him with Republicans, and here that Senator Potts is against a takeover of the Republican Party by "a bunch of Johnny-come-latelies who want everything my-way-or-the-highway, always in your face and absolutely obsessed with abortion."

Reparations for the "victims" of coal companies in Appalachia?

I had noticed before now this law review article by Professor Wendy Davis of the Appalachian School of Law, canvassing the history of litigation against coal companies in Appalachia, and concluding that reparations should be funded by the coal companies and paid by the federal government to local governments in Southwest Virginia and neighboring areas.

I don't quite agree with the politics, but the legal history is interesting, although I think coal companies lose more cases than is represented here, and one startling omission is the role whether for good or for ill of the United Mine Workers of America.

That Jefferson, what was he thinking?

A new book called "MR. JEFFERSON'S LOST CAUSE: Land, Farmers, Slavery, And The Louisiana Purchase" by Roger G. Kennedy describes President Thomas Jefferson's goals for the territory within the Louisiana Purchase, and concludes that it did not quite turn out like Jefferson had hoped, mainly in that he failed to foresee the expansion of slavery into what eventually became new states, according to this review.

Candidates for governor looking in every direction for money

In this week's column by Jeff Schapiro, he explains that Tim Kaine and Jerry Kilgore are soliciting money from the left, right, and center, which raises the possibility "that both candidates are suppressing their instincts, if only to raise enough money to expose each other for what they really are - whatever that is."

Troubles with the Virginia Birth-related Neurological Injury Compensation Program

The Richmond Times-Dispatch reports here and here on the difficulties with parents and children caught up in seeking compensation from the Virginia Birth-related Neurological Injury Compensation Program.

The late Justice Powell on race in college admissions, and more college applicants don't answer the race question

While the University of Michigan admissions cases are pending before the Supreme Court, the Richmond Times-Dispatch has this report focusing on the role of Justice Lewis Powell, Jr., himself a Richmonder, on the Court's decision 25 years ago in the Bakke case. The article notes that "the court's ruling, expected at any time, will deal with many of the same ideas and legal issues with which Powell had wrestled," and quotes Powell's biographer, Professor Jeffries from U.Va. Law School, as saying that unlike the public acceptance of the integration of public schools, in the interim since the Bakke case "the country has not come overwhelmingly to one conclusion or the other, but remains poised in the ambiguity that Powell identified."

Also, the Washington Post has this interesting story about the increasing number of college applicants who for one reason or another do not answer the question on applications about race.

Bad combination of prescription drugs asserted as defense to murder

The defendant in a Roanoke murder case is claiming that she was not responsible for her actions because she had taken two antidepressant drugs (Zoloft and Paxil) that don't mix, according to this report in the Roanoke Times.

Coincidentally, this story in the Pittsburgh Post-Gazette discusses the link theorized between anti-depressants and teen violence.